Small practice compliance plan offers guidance and some flexibility
Guideline emphasizes adherence to seven basic compliance principles
Individual physicians and small group practices lacking the resources to institute a full-blown compliance program are free to contract out the duties of an in-house compliance officer, according to guidelines for smaller physician practices released June 7 by the U.S. Department of Health and Human Services’ Office of the Inspector General (OIG).
While refusing to define the difference between a small and big practice, OIG chief counsel D. McCarty Thornton says larger physician groups also should use this guidance — plus guidelines already issued for third-party billing companies and clinical labs — as the baseline for creating their own compliance programs.
The plan has been in development since last November, and the OIG hopes to finalize it this fall.
"It seems the OIG is showing more sensitivity to our argument that you can’t have a one-size-fits-all guidance when it comes to physicians by offering some less-costly compliance alternatives," says Robert Doughtery, vice president for government relations of the American College of Physicians-American Society for Internal Medicine in Philadelphia.
The draft guideline is not an official rule or regulation, but it spells out what the OIG feels is a properly designed and managed compliance program for physician practices. "Adherence to these guidelines is strictly voluntary," Thornton stressed at the press conference unveiling the guidelines.
The bottom line is that if federal inspectors question a provider’s actions, compliance with the guidance tends to create an unofficial assumption that the problem is probably a simple mistake rather than intentional attempt to defraud. However, if investigators don’t see what they feel is an adequate effort to implement those compliance points, that could raise a red flag prompting a closer look at the group’s books.
"The idea that this is a voluntary program — but not really — sends a mixed message which we are not comfortable with," says Arron Krupp, a lobbyist for the Medical Group Management Association (MGMA) of Englewood, CO.
MGMA’s reaction to the proposal also is mixed. "We’re happy to see an attempt to make the guidance more flexible. But, frankly, we feel it’s still too expensive for many smaller practices to implement," notes Krupp. "Basically, we just don’t think the guidelines are necessary."
Mistakes vs. fraud
Physician groups have complained that in the past, doctors were treated like criminals for matters that were basically innocent billing mistakes or legitimate differences of opinion. In what amounts to a peace offering, the OIG will not subject physicians to civil or criminal penalties for innocent mistakes, says OIG lawyer Larry Goldberg. "We are not seeking to punish people for honest billing errors," he says.
Should an unintentional billing error be uncovered, Goldberg says the agency is only interested in having any overpayment returned; it won’t even tack on any additional fines or penalties.
However, if the feds think a provider knew a false claim was being filed or that it exhibited reckless disregard or deliberate ignorance of inappropriate behavior, government lawyers will be ready to pounce.
Some actions that fall under this category include simply refusing to set up a system to stay current with government coding and reimbursement rules, or knowingly submitting an inflated bill "just to see if the carrier will pay it," says Thornton.
As with its previous compliance guidelines, the solo and small group practice guidance is based on seven principles the OIG says are fundamental to creating a legitimate compliance program:
1.Written policies and codes of conduct. It’s not a compliance program if your policies and procedures are not written down. Specific high-risk compliance areas the OIG wants practices to pay particular attention are:
o Coding and billing. Hot-button topics to watch for include billing for items or services not rendered or provided as claimed; submitting claims for equipment, medical supplies, and services that are not reasonable and necessary; double-billing; billing for noncovered services as if covered; knowingly misusing provider ID numbers resulting in improper billing; billing for unbundled services; failure to properly use coding modifiers; and upcoding.
o Reasonable and necessary services. Compliance polices should stress that claims will be submitted only for medical services meeting Medicare’s accepted definition of reasonable and necessary.
o Documentation. Medical documentation needs to be timely, accurate, and complete. That means being able to read the record, patient encounter information that includes reason for the encounter, relevant history, physical exam findings, prior diagnostic test results, assessment, clinical impression or diagnosis, and the date and identity of the observer.
If not documented, the rationale for ordering diagnostic and other ancillary services should be easily inferred. Past and present diagnoses also should be accessible to the treating and/or consulting physician. Appropriate health risk factors should be identified. The patient’s progress and response to — or changes in — treatment and diagnosis need to be documented.
The OIG is very interested in seeing providers follow proper CPT and ICD-9-CM documentation and chart procedures and correctly complete the HCFA 1500 Form.
o Kickbacks, inducements, and self-referrals. Compliance programs should ensure providers adhere to federal anti-kickback and self-referral laws. The OIG wants physicians to pay special attention to any arrangements they have with hospitals, hospices, nursing facilities, home health agencies, durable medical equipment suppliers, and related vendors. (See story on space rental agreements, p. 96.)
o Record retention. A physician practice’s compliance procedures should contain a section on the retention of compliance, business, and medical records," along with institution of a records retention system, advises the OIG.
2.Designating a compliance officer or contact. Practices need to designate one person from their staffs to oversee the compliance program. A critical criterion for selecting the compliance officer is that his or her job be independent enough to avoid possible conflicts of interests between staff duties and compliance responsibilities. More than one person can be appointed to monitor compliance. Such staffers will be called compliance contacts.
Practices also can choose to outsource part or all of the compliance officer’s responsibilities to a third party such as a consultant, physician practice management company, management services organization, independent practice association, billing company, or professional association. Or, they can choose to be covered under the compliance program of another institution, such as a hospital. However, those can’t be just paper appointments. The OIG wants any outsourced or shared compliance person to have enough interaction with the practice to do the job effectively.
3.Training and education. Practices must ensure all employees are at least familiar with the key risk areas identified in this guidance and the annual OIG work plan, which highlights the agency’s enforcement priorities for the coming year. The OIG wants to see new hires begin compliance training within 60 days of coming aboard. It’s also asking practices to perform annual training emphasizing that compliance is a condition of continued employment with the group.
However, just giving employees compliance materials to read on their own will not meet the OIG’s standards. The draft calls for such things as in-house training sessions, outside seminars, newsletters, videos, or often-used office bulletin boards to be part of your training effort.
4.Communication. It’s not necessary to install a telephone hotline or e-mail system for employees to ask for information, pose questions or report possible problems. But the OIG does want to see evidence of a clear open-door policy when it comes to registering concerns. The other side of that is a strong emphasis on the fact employees can report any questions without fear of retribution.
5.Internal audits and monitoring. The OIG suggests the person in charge of a billing compliance program work with a designated physician to perform a regular self-audit of claims based around the practice’s top 10 claim denials — or top 10 services provided.
Things the OIG wants the audit to look for include:
o bills accurately coded to reflect the services provided;
o services or items medically necessary and documented by specific codes;
o possible data errors;
o confirmation that orders were written and signed by a physician;
o confirmation that any tests ordered were performed and properly billed;
o correct assignment codes and modifiers.
6.Disciplinary actions. The OIG suggests consistent and appropriate sanctions ranging from oral warnings to termination for any physician or employee violating the practice’s compliance program. That should include anyone failing to report possible violations or violators. If any questionable conduct comes to light, the compliance officer or contact needs to make a written entry noting date of the incident, name of the reporting party, name of person responsible for taking action, and any follow-up action taken.
7.Responding to detected offenses. Practices should quickly investigate and correct any possible compliance questions and take "decisive steps" to correct the problem. This could include such things as returning an overpayment, reporting the problem to government officials, or referring the situation to law enforcement.
Providers have a 90-day grace period from day of discovery until a possible problem is reported to the appropriate government authorities before any future delay in notification is considered a bad faith action. Failure to report could "seriously endanger the reputation and legal status of your practice," notes the draft.
When it comes to notifying and returning an overpayment, a "knowing and willful failure to disclose overpayments within a reasonable period of time could be interpreted as an attempt to conceal the overpayment . . . establishing an independent basis for a criminal action," stresses the OIG.
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